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The latest on employment tribunal fees

It is now over a month since employment tribunal fees were ruled unlawful by the Supreme Court. Despite ongoing uncertainty over what will happen next, the ‘show must go on’ and the following recent case law updates are of particular note:

The presidents of the Employment Tribunals of England and Wales announced on 18 August 2017 that administrative arrangements for the reimbursement of fees will be confirmed ‘shortly’. In reliance on this sentiment, Employment Judge Brain at Sheffield Employment Tribunal declined to make an order for the costs of bringing a claim against the respondent on the basis that the fees will be reimbursed in any event (A v B: 1801170/2014). This flags an interesting point: it’s not just those who have brought claims who may seek reimbursement of fees, but also respondents who – as part of their punishment – were ordered to pay the claimant’s costs.

Despite reports to the contrary, a case is yet to be brought ‘out of time’ in reliance on the fact that the delay in bringing the claim was due to the fees. In the case of Dhami v Tesco Stores (1401646/2016) Employment Judge Wright at Southampton Employment Tribunal acknowledged the argument that time should be extended on a ‘just and equitable’ basis. Nevertheless, in this particular case time was extended on the basis that the claim could not be brought earlier due to the fact that the claimant had been unwell.

Where claims have been brought but then struck out because of non-payment of fees, these are gradually being reinstated. This is worrying for employers, who may think that an issue has long gone away, but then receive notice of a claim without warning. Respondents would not necessarily be aware that a claim was brought and then struck out previously - the ET1 claim form would not have been sent to them if the fee was not paid.

For more information on these issues, or if you’d like bespoke training delivered in-house, please get in touch with our specialist employment lawyers.

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